Major Changes To The “Open Meetings” Mandate For Subdivisions (SB 1168 §8)

Amendments to Chapter 209.0051 make significant changes to the “open meetings” law for subdivisions (not condominiums). Due to its importance, I review the entire statute as now in effect. Homeowners, and associations, should study this now!

Initially, 209.0051(a) continues to exempt any association that is subject to Government Code 551.0015. That exception merits expanded use, but currently applies rarely. Also, developers keep their partial exception to these requirements in 209.0051(i). This merits reconsideration in future legislation.

Changes in 209.0051(b) do not alter the definition of a “board” meeting. Future legislation might clarify this.

The basic mandate for open meetings remains in 209.0051(c). The categories of actions for executive session remain unchanged, as do the mandates to report on executive sessions.

New is a detailed provision, in 209.0051(c-2) that – for better or worse – allows board meetings to be “held by electronic or telephonic means” if specific conditions are all met:

each board member may hear and be heard by every other board member;

except for any portion of the meeting conducted in executive session:

all owners in attendance at the meeting may hear all board members; and

owners are allowed to listen using any electronic or telephonic communication method used or expected to be used by a board member to participate; and

the notice of the meeting includes instructions for owners to access any communication method required to be accessible under Subdivision (2)(B).

Existing requirements to keep minutes and make them available, to give notice of meetings, for homeowners to keep their e-mail address up-to-date, and for recessing meetings remain in Chapter 209.0051(d, e, f, & g). However, there are two changes, of major import, to the law governing board action taken outside of a meeting.

First, 209.0051(h) now provides authority for boards to act outside of a meeting “if each board member is given a reasonable opportunity to express the board member’s opinion to all other board members, and to vote.” That could, if unrestricted, gut the whole point of the “open meetings” provision, leaving only the duty to report results at later meetings.

However, 209.0051(h) now includes a significantly expanded list of activities for which an “open meeting” is now required for the board to “consider or vote on”. The full list follows, paragraphs (9) to (15) being new:

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The following DISCLAIMER is important. I offer this web site, and blogs, to express opinions that I hope help homeowners. These legal opinions are not guaranteed in any way: (1) it is always possible that some courts will not agree with my interpretations -- some courts (in my opinion) unduly protect associations at the expense of homeowners; (2) in any dispute with an association, the outcome depends in significant part on governing documents and details of facts that vary widely; and (3) I may change my mind as I learn more. Therefore, this web page does not offer specific legal advice for any individual, and reading it does not make you my client. If you want to learn specifically about your rights – how the law or your association’s governing documents may affect you – or if you may want to sue a homeowners association, or if you have been sued by your subdivision, townhome, or condominium, I urge you to seek a lawyer to evaluate your personal situation. Most lawyers, myself included, will want a signed agreement (called a retainer) before they provide advice specific to an individual person or family.